Rich v. Mulloney

Mr. Justice Fbeeman delivered the opinion of the court. There is no appearance and no brief filed in behalf of appellee. Apparently no counsel are willing to defend in this court the appointment of a receiver under this bill. It is clear that such appointment should not have been made. In the first place the principal complainant by whom the bill was originally verified, files an affidavit stating that she signed and made oath to it under a misapprehension that she has confidence in the good faith and ability of the management of the trustee and does not desire the appointment of a receiver. At her request the bill is dismissed as to her, and yet upon a bill, the verification of which has been formally withdrawn, a receiver has nevertheless been appointed. Again, the trustee Ellen Rich is shown on the face of the bill to be acting under formal appointment of the Circuit Court of Cook county.. She was and is amenable to that court for any dereliction in duty. Tet upon an unverified bill which makes no charge of insolvency or lack of responsibility in the trustee, upon no better ground than the alleged belief, not justified by any facts stated, of complainant, a foreign administrator, that a large balance is coming to him as administrator from said estate, and that he fears and charges the creditors and heirs at law are in danger of losing the amount due them, the property and business are taken out of the hands of a regularly appointed trustee and from the control of parties who, under the allegations of the bill, have at least a third interest in the property, with a possibility that under the will of Elisha B. Rich, the son, Edward W., husband of the trustee, may in fact be found to have a larger interest, and turned over to the control of a receiver in whose selection the owners of two-thirds at least of the property have no voice and against whose appointment they both protest. In Schack v. McKey, 100 Ill. App., 294-300, we said that “a court of equity is not justified in arbitrarily taking the possession of property from one holding, it under claim of valid title, merely because another disputes the holder’s claim. (First Nat. Bank, etc., v. Gage, 79 Ill., 207; Beach on Receivers, sec. 5; Harn v. Quackenbush Am. Bankruptcy Rep., vol. 5, Eo. 5-483.) The power to appoint a receiver and. put him in possession of another’s property is one of the most important prerogatives of equity, only to be exercised by the conscientious chancellor when it is clear there is no other adequate means of doing justice between the parties and preventing the accomplishment of a wrong.” In Lemker v. Kalberlah, 105 Ill. App., 445, 452, we said, that a receiver should be appointed in no case unless it is made to appear there is an imperative necessity for the step to preserve some particular property for such parties as shall be entitled thereto. See also Baker v. Administrator, 32 Ill., 79-115; Consolidated S. M. & M. Co. v. Loeber, 96 Ill. App., 128. We find nothing in the bill in this case which can seem to justify taking an old established business out of the hands of the trustee and of her husband, Edward W. Eich, who has had an active interest in it for many years. The trustee is acting under the direction of a court of chancery. She and her husband are apparently perfectly solvent, they are not charged with fraud in the management, and by the admissions of the bill the trustee’s husband, Edward W. Eich, is conducting the business which his father’s will provided should be continued under his supervision and management; and he apparently claims with some show of right under his father’s will, admitted to be ambiguous, a controlling interest. In any event the appointment of the receiver was erroneous, and the order of appointment will be reversed. Order reversed.